EMPLOYMENT - DISCRIMINATION - LOCAL GOVERNMENT
DETRIMENT : MEETINGS : PREGNANCY DISCRIMINATION : RISK ASSESSMENT : SEX DISCRIMINATION : TEACHERS : NEED FOR RISK ASSESSMENT : reg.16 MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS 1999 : DIRECTIVE 92/85 ON THE INTRODUCTION OF MEASURES TO ENCOURAGE IMPROVEMENTS IN THE SAFETY AND HEALTH AT WORK OF PREGNANT WORKERS AND WORKERS WHO HAVE RECENTLY GIVEN BIRTH OR ARE BREASTFEEDING 1992 : MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS 1999
In the absence of evidence that the work of a pregnant teacher involved a risk to her health and safety, there had been no obligation on her employer to carry out a risk assessment under the Management of Health and Safety at Work Regulations 1999 reg.16.
The appellant (O) appealed against a decision of the employment tribunal to dismiss her claim against the respondent (B) for pregnancy-related sex discrimination. O, who had been employed by B as a teacher at a junior school, had asserted that the school's head teacher (C) had failed to carry out a risk assessment after being informed that she was pregnant. On July 17, 2006, C had begun to prepare a risk assessment, some five weeks after being informed of O's pregnancy. She did not in general consider the risks attaching to pregnancy in the work of a teacher at the school and drafted the form in default format indicating that she intended to complete it later in conjunction with O when there was an opportunity to do so. She did not do so before the end of term on July 21.
The tribunal accepted that O, who was by then subject to an investigation into potential disciplinary matters, was avoiding conversation with C much as possible, and that the end of term was a busy time. The tribunal noted that C had formed the view that the appropriate time for the risk assessment would be later in the pregnancy after the immediate stress of the commencement of the disciplinary investigation had died down and on return to school in September. In the event, O was at work at school between September 4 and 19 but then went on sick leave.
The tribunal held that the Management of Health and Safety at Work Regulations 1999 did not apply to the work carried out by O, so that there had not been any failure to carry out a risk assessment. In the alternative, it found that, even if there had been an obligation to carry out such an assessment, there had been no failure to do so by B. O argued that (1) the tribunal had been wrong to hold that a risk assessment had not been required in her case; (2) the tribunal had been wrong to hold in the alternative that B had not failed to carry out a risk assessment: the process could not be regarded as completed without a meeting with the employee, and no such meeting had taken place in her case; (3) the tribunal had failed to make a finding as to whether she had suffered a detriment during her "protected period".
HELD: (1) As B had asserted, there was no general obligation to carry out a risk assessment in respect of pregnant employees, and a failure to carry out such an assessment would not be discrimination per se, Madarassy v Nomura International Plc (2007) EWCA Civ 33, (2007) ICR 867 followed. The obligation to carry out a risk assessment of a pregnant worker arose only where (a) the employee notified the employer in writing that she was pregnant, (b) the work was of a kind which could involve a risk of harm or danger to the health and safety of a new or expectant mother or her baby and (c) the risk arose from any processes or working conditions, or physical, biological or chemical agents, including those specified in Annexes I and II of Directive 92/85.
There had been no material before the tribunal from which it could have concluded that the kind of work carried out by O involved a risk of harm or danger to her as a pregnant worker as defined by the Directive and the 1999 Regulations. (2) There was nothing in either the Directive or the Regulations to indicate that a meeting with the employee was required when a risk assessment was carried out. The tribunal had therefore been correct in its alternative view that a risk assessment had been carried out notwithstanding that a meeting had not taken place. (3) Where there was an obligation to conduct a risk assessment, proof of detriment was not necessary, Hardman v Mallon (t/a Orchard Lodge Nursing Home) (2002) 2 CMLR 59 EAT followed.
L O'NEILL v BUCKINGHAMSHIRE COUNTY COUNCIL (2010)